[Federal Register Volume 69, Number 147 (Monday, August 2, 2004)]
[Proposed Rules]
[Pages 46124-46128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17499]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[MD160-3107; FRL-7795-5]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; Redesignation of Kent and Queen Anne's Counties Ozone 
Nonattainment Area to Attainment and Approval of the Area's Maintenance 
Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a redesignation request and a 
State Implementation Plan (SIP) submitted by the State of Maryland. The 
SIP revision establishes a maintenance plan for Kent and Queen Anne's 
Counties that provides requirements for continued attainment of the 
one-hour ozone National Ambient Air Quality Standard (NAAQS) for the 
next 10 years.

DATES: Written comments must be received on or before September 1, 
2004.

ADDRESSES: Submit your comments, identified by MD160-3107 by one of the 
following methods:
    A. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    B. E-mail: [email protected].
    C. Mail: Makeba Morris, Chief, Air Quality Planning Branch, 
Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 
Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. MD160-3107. 
EPA's policy is that all comments received will be included in the 
public docket without change, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The Federal regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, 
EPA recommends that you include your name and other contact information 
in the body of your comment and with any disk or CD-ROM you submit. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of

[[Page 46125]]

encryption, and be free of any defects or viruses.
    Copies of the documents relevant to this action are available for 
public inspection during normal business hours at the Air Protection 
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch 
Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket 
and Information Center, U.S. Environmental Protection Agency, 1301 
Constitution Avenue, NW., Room B108, Washington, DC 20460; and Maryland 
Department of the Environment, 1800 Washington Boulevard, Suite 705, 
Baltimore, Maryland, 21230.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: On February 9, 2004, the Maryland Department 
of the Environment (MDE) formally submitted a redesignation request for 
Kent and Queen Anne's Counties ozone nonattainment area to attainment 
of the one-hour NAAQS for ozone. At the same time, Maryland submitted a 
maintenance plan for Kent and Queen Anne's Counties as a SIP revision, 
to assure continued attainment over the next 10 years.

I. Background

    Kent and Queen Anne's Counties were designated as marginal ozone 
nonattainment areas on November 6, 1991. Under section 107(d)(3)(E) of 
the CAA, the following five criteria must be met for an ozone 
nonattainment area to be redesignated to attainment:
    1. The area must meet the ozone NAAQS;
    2. The area must have a fully approved SIP under section 110(k);
    3. The area must show improvement in air quality due to permanent 
and enforceable reductions in emissions resulting from implementation 
of the applicable implementation plan and applicable Federal air 
pollutant control regulations and other permanent and enforceable 
regulations;
    4. The area must have a fully approved maintenance plan under 
section 175A of the CAA; and
    5. The area must meet all requirements applicable under section 110 
and part D.

II. Summary of Maryland's Submittal

    The following is a brief description of how the State of Maryland's 
February 9, 2004 submittal fulfills the five requirements of section 
107(d)(3)(E). EPA will discuss its evaluation of the maintenance plan 
under its analysis of the redesignation request. A more detailed 
description of the state submittal and EPA's evaluation are included in 
a Technical Support Document (TSD) prepared in support of this 
rulemaking action. A copy of the TSD is available, upon request, from 
the EPA Regional Office listed in the ADDRESSES section of this 
document.

A. Attainment of the Ozone NAAQS in Kent and Queen Anne's Counties

    Section 181(b)(2)(A) of the CAA states that the EPA Administrator 
shall determine whether the area has achieved the standard based on the 
design value of that area. There is one ozone monitor that measures the 
air quality in Kent and Queen Anne's Counties that is located in the 
Millington Wildlife Management area near Massey in Kent County. The 
ozone monitor is a regional scale monitor for the determination of 
regional background concentrations of ozone. According to the Code of 
Federal Regulations, 40 CFR part 50, appendix H, Kent and Queen Anne's 
Counties have attained the ozone standard for the most recent three-
year period, 2001-2003. The State of Maryland's request for 
redesignation for Kent and Queen Anne's Counties indicates that the 
data was quality assured in accordance with 40 CFR part 58. MDE uses 
regular precision checks, calibrations, and audits to ensure the 
validity of the data. MDE also uses the Aerometric Information 
Retrieval System (AIRS) as the permanent database to maintain its data 
and quality assures the data transfers and content for accuracy.

B. Fully approved SIP Under Section 110(k) of the CAA

    The State of Maryland SIP submittals fall into two general 
categories: pre-amendment and post-amendment submittals. Pre-amendment 
submittals consist of SIP modifications made to meet requirements in 
existence prior to the enactment of the 1990 CAA amendments. These 
submittals are fully approved as applicable to Kent and Queen Anne's 
Counties. Post-amendment submittals made by MDE meet EPA criteria for 
approval.
    The following are post-amendment requirements delineated under 
section 182(a) of the CAA for marginal areas and section 184(b) of the 
CAA for areas included in the ozone transport region (OTR) for Kent and 
Queen Anne's Counties:
    1. A 1990 base year inventory;
    2. A periodic inventory every three years after 1990 until 
attainment;
    3. Regulations designating any 50 tons per year (tpy) volatile 
organic compounds (VOC) or 100 tpy for nitrogen oxides (NOX) 
stationary source as a major source;
    4. Regulations requiring stationary sources with potential to emit 
above the major source threshold to undergo new source review (NSR) 
requirements including 1.15 to 1 offsets;
    5. Regulations requiring stationary sources that emit above 25 tpy 
VOC or NOX to file a certified emissions statement annually;
    6. Regulations requiring reasonably available control technology 
(RACT) on VOC and NOX sources; and
    7. The inclusion of Queen Anne's County in the Enhanced Inspection 
and Maintenance (I/M) program because it is a part of a metropolitan 
statistical area greater than 200,000 population in the OTR.
    MDE has met these requirements for Kent and Queen Anne's Counties 
through the development and implementation of the following regulations 
and technical documents that have been submitted to EPA as SIP 
submittals:
    a. Expansion of RACT rules statewide (COMAR 26.11.19.02G);
    b. Emissions certification requirements (COMAR 26.11.01.05-1);
    c. New source review requirements (COMAR 26.11.17);
    d. Enhanced I/M (COMAR 11.14.08--jointly adopted by MDE and Motor 
Vehicle Administration); and
    e. The 1990 base year inventory.
    EPA approved the 1990 base year inventory for Kent and Queen Anne's 
Counties along with inventories for other nonattainment areas on 
September 27, 1996 (61 FR 50715). MDE has supplied the following 
inventories to EPA through a combination of written and electronic 
documentation: the 1993, 1996, and 1999 periodic inventories. 
Additionally, Maryland exercised its option to voluntarily require 
Federal reformulated gasoline in all ozone nonattainment areas, 
including Kent and Queen Anne's Counties (COMAR 03.03.05.01--
Comptroller of the Treasury, Motor Fuel Inspection Regulation). The 
State has approved the VOC and NOX RACT rules for sources in 
Kent and Queen Anne's Counties.

C. Permanent and Enforceable Reductions

    A number of permanent and enforceable measures have caused emission 
reduction and lowered concentrations in Kent and Queen Anne's Counties. 
These reductions are from all source sectors:
    1. Federal Motor Vehicle Control Program (FMVCP) Tier 1 tailpipe 
standards.

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    2. Maximum Reid Vapor pressure (RVP) of 7.8 psia for gasoline sold 
in Maryland in 1992 and beyond.
    3. Federal reformulated gasoline program.
    4. Study of growth in mobile source emissions using HPMS module of 
the PPSuites modeling software.
    5. New emissions standards for non-road mobile sources: farm 
equipment, lawn and garden equipment and recreational boats.
    6. Additional Tier 3 standards for non-road mobile sources: (1) 
Tiers 1, 2, and 3 compression-ignition standards for diesel engines 
greater than 50 horsepower; (2) Tiers 1 and 2 compression-ignition 
standards for diesel engines below 50 horsepower; (3) Phases 1 and 2 of 
the spark-ignition standards for gasoline engines less than 25 
horsepower; and (4) Recreational spark-ignition marine engines 
controls.
    7. Total emissions from area sources: (1) Tank truck unloading; (2) 
degreasing; (3) architectural surface coatings; and (4) commercial and 
consumer solvents.
    8. Growth in point sources will be controlled through the new 
source review requirements for offsets.

D. Maintenance Plan for Kent and Queen Anne's Counties

1. Maintenance Plan Requirements
    A maintenance plan is a SIP revision that provides maintenance of 
the relevant NAAQS in the area for at least 10 years after 
redesignation. A maintenance plan consists of the following 
requirements as outlined in section 175A of the CAA: (a) An attainment 
inventory, (b) a maintenance demonstration, (c) a monitoring network, 
(d) verification of continued attainment and (e) a contingency plan.
a. Attainment Inventory
    Attainment inventory should include the emissions during the time 
period associated with the monitoring data showing attainment. MDE 
determined that the appropriate attainment inventory year is 2002. That 
year establishes a reasonable year within the three-year period block 
of 2001-2003 as a baseline and accounts for reductions attributable to 
implementation of the CAA requirements to date. This inventory is based 
on actual emissions for a typical peak ozone season days, which occur 
during the months of June, July and August.
b. Maintenance Demonstration
    MDE's calculations of future emissions of VOCs and NOX 
from stationary and mobile sources demonstrate that future emissions 
will not exceed the level of the attainment inventory (see Tables 1 and 
2). Future emissions levels must continue to remain at or below 
attainment levels for a period of 10 years after EPA redesignates the 
nonattainment to attainment. MDE's planning horizon for the maintenance 
plan is 2014.

    Table 1.--Attainment Year and Projected VOC Emissions Inventories for the Kent and Queen Anne's Counties
                                               Nonattainment Area
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                                                                                            2014 Projected VOC
                        Source Category                            2002 VOC Emissions      Emissions  (Tons per
                                                                     (Tons per day)                day)
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On-road Mobile................................................                     4.91                     2.09
Non-road Mobile...............................................                     5.91                     6.59
Area..........................................................                     4.33                     5.34
Point.........................................................                     0.12                     0.16
                                                               --------------------------
    Total.....................................................                    15.27                    14.18
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    Table 2.--Attainment Year and Projected NOX Emissions Inventories for the Kent and Queen Anne's Counties
                                               Nonattainment Area
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                                                                                            2014 Projected NOX
                        Source Category                            2002 NOX Emissions      Emissions  (Tons per
                                                                     (Tons per day)                day)
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On-road Mobile................................................                      7.7                     2.92
Non-road Mobile...............................................                     3.22                     4.15
Area..........................................................                     1.46                     1.75
Point.........................................................                     0.07                     0.09
                                                               --------------------------
    Total.....................................................                    12.45                     8.91
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c. Monitoring Network
    MDE will continue to operate the current air quality monitor in 
Millington in accordance with 40 CFR part 58.
d. Verification of Continued Attainment
    Section 187(a)(5) of the CAA requires periodic inventories every 
three years for ozone nonattainment areas. These inventories will be 
statewide because Maryland is a part of the Northeast Ozone Transport 
Region. Maryland expects to compile a VOC and NOX inventory 
for Kent and Queen Anne's Counties every three years. MDE will be able 
to consult these inventories to make sure that the emissions levels 
remain at or below attainment inventory levels. In addition, MDE will 
compare actual inventories to projected emissions levels. If there are 
significant differences between actual and projected growth, then MDE 
will examine its projected methods. If warranted, MDE will revise its 
methods and again compare inventories. If these inventories, actual or 
projected, reveal that emissions actually exceed the attainment 
inventory, then MDE will consider implementing contingency measures.
e. Contingency Measures
    According to the CAA, states that wish to redesignate nonattainment 
areas to attainment must include in their submittal to EPA, contingency 
measures which will automatically take effect should violations of the 
NAAQS occur in the former nonattainment area. Contingency plan measures 
to be considered for implementation for Kent

[[Page 46127]]

and Queen Anne's Counties include three VOC model rules as additional 
measures that are currently adopted in Maryland. The rules are part of 
a Memorandum of Understanding (MOU) and resolutions signed on March 28, 
2001 by the states participating in the Ozone Transport Commission 
(OTC). The rules have the potential to reduce emissions from consumer 
products, portable fuel containers, and Architectural and Industrial 
Maintenance (AIM) coatings.
2. Requirement for Continued Maintenance
    Section 175A(b) of the CAA will also require Kent and Queen Anne's 
Counties to submit a revision of the SIP eight years after the original 
redesignation request is approved to provide for maintenance of the 
NAAQS for an additional 10 years following the first 10-year period.

E. Section 110 and Part D Requirements

1. Section 110 Requirements
    Section 110(a)(2) of the CAA contains general requirements for 
nonattainment plans. Most of the provisions of this section are the 
same as those contained in the pre-amended CAA. The State of Maryland 
has fulfilled all pre-amendment CAA requirements pertaining to Kent and 
Queen Anne's Counties and the two nonattainment areas of Baltimore and 
Washington.
2. Part D Requirements
    Under part D, an area's classification determines the requirements 
to which it is subject. Kent and Queen Anne's Counties was classified 
as marginal ozone nonattainment.
    Part D subpart 2, entitled ``Additional Provisions for Ozone 
Nonattainment Areas,'' requires that marginal nonattinment areas, which 
have design values between 120-140 ppb, achieve attainment by November 
23, 1993. However, a one-year extension of the deadline can be granted 
under certain conditions (section 181(a)(5)). Kent and Queen Anne's 
Counties attained the standards by the fall of 1994.
    Section 182(a)(1) under part D requires the development of a 
``comprehensive, accurate, and current inventory of actual emissions 
from all sources, and a permit program for new and modified major 
stationary sources.'' MDE submitted its 1990 base year emissions 
inventory on September 30, 1993 for Kent and Queen Anne's Counties and 
was approved by EPA on September 27, 1996 (61 FR 50715). The last 
inventory update was the 1999 periodic inventory. In addition, MDE has 
a fully implemented new source review program on February 12, 2001 (66 
FR 9766).

Conformity Process

    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally supported or funded projects 
conform to the air quality planning goals in the applicable SIP. The 
requirements to determine conformity applies to transportation plans, 
programs and projects developed, funded or approved. Section 176 
further provides that state conformity revisions must be consistent 
with the Federal conformity regulations that the CAA required EPA to 
promulgate. Although Federal conformity rule changes are still pending, 
EPA believes that it is reasonable to interpret conformity requirements 
as not applying for purposes of evaluating a redesignation request 
under section 107(d) so that EPA may approve an ozone redesignation 
request notwithstanding the lack of a fully approved conformity SIP. 
The rationale for this is based on a combination of two factors. First, 
Federal conformity rules require performance of conformity analyses 
even in the absence of Federally approved states rules. Second, 
conformity provisions of the CAA continue to apply after redesignation 
because areas are subject to a maintenance plan which requires 
compliance with mobile budgets. Therefore, because areas are subject to 
the conformity requirements regardless of whether they are redesignated 
to attainment and must implement conformity under Federal rules if 
state rules are not approved, EPA believes it is reasonable to view 
these requirements as not applying for purposes of evaluating a 
redesignation request.
    Kent and Queen Anne's Counties are not members of any metropolitan 
planning organization (MPO). Currently, the Maryland Department of 
Transportation (MDOT) acts on behalf of the counties to include 
projects in the two counties in the State Transportation Improvement 
Program (STIP). Under 40 CFR 51.448 as part of the SIP process, this 
maintenance plan will establish an emission budget to be used for 
transportation conformity purposes. This motor vehicle emissions budget 
(MVEB) establishes a cap on emissions that cannot be exceeded by 
predicted highway and transit vehicle emissions. For the period from 
2002 until 2014, the MVEB for Kent and Queen Anne's Counties combined 
is 4.91 tpd VOC and 2.92 tpd NOX. Some projects may help to 
reduce mobile source ozone precursor emissions by leading to fewer 
vehicle trips in Kent and Queen Anne's Counties. These types of 
projects include increased commuter bus service and additional park and 
ride lot spaces.

III. Proposed Action

    EPA is proposing to approve the State of Maryland's February 9, 
2004 request for Kent and Queen's Counties ozone nonattainment area to 
attainment of the one-hour NAAQS for ozone because the requirements for 
approval have been satisfied. EPA is also proposing to approve the 
associated maintenance plan for this area submitted by Maryland, as 
required under section 175A of the CAA, as a revision to the Maryland 
SIP, which was submitted on February 9, 2004. EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)). 
This action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under state law and does not impose any 
additional enforceable duty beyond that required by state law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act of 
1995 (Pup. L. 104-4). This proposed rule also does not have a 
substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or

[[Page 46128]]

on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132 (64 FR 
43255, August 10, 1999), because it merely proposes to approve a state 
rule implementing a Federal standard, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. This proposed rule also is not 
subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because 
it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this proposed rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings' issued under the executive order.
    This rule proposing to approve the redesignation of Kent and Queen 
Anne's Counties ozone nonattainment area to attainment and to approve 
the associated maintenance plan, does not impose an information 
collection burden under the provisions of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Ozone, Reporting 
and recordkeeping requirements, Volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: July 26, 2004.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 04-17499 Filed 7-30-04; 8:45 am]
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